Evidentiary Issues Regarding Fines

Due to the widespread use of fines to punish and deter prohibited activities, the SCC’s recent grant of leave to appeal in R. v. Topp, 2008 CanLII 20991 (ON S.C.) will be of interest to many people. Between 1999 and 2001, John Topp recovered over $4.7 million in taxes and duties owed to customs by his customs brokerage business’ clients. After he failed to remit the money to customs as required, he was convicted of 16 counts of fraud and attempted fraud under s. 153(c) of the Customs Act, R.S.C. 1985, c. 1 (the Act). Section 160(1) outlines the sentence for a conviction under s. 153. It states: According to s. 160 of the Act, a person convicted under s. 153 is liable to a fine up to $500,000 and/or imprisonment up to five years.

160. (1) Every person who contravenes … section 153…
(a) is guilty of an offence punishable on summary conviction and liable to a fine of not more than fifty thousand dollars or to imprisonment for a term not exceeding six months or to both that fine and that imprisonment; or
(b) is guilty of an indictable offence and liable to a fine of not more than five hundred thousand dollars or to imprisonment for a term not exceeding five years or to both that fine and that imprisonment.

Topp’s multiple counts of fraud and attempted fraud meant that he could have received a sentence of more than five years and/or a fine greater than $500,000. The statutory language in s. 160(1) indicates that the imposition of a fine is discretionary. Baltman J. exercised her discretion to sentence Topps to jail time, but did not impose a fine. She stated, “As I am not persuaded the accused has the ability to pay a fine, none is imposed.” During sentencing, no evidence was presented as to the whereabouts of the stolen funds. Some of the money was traced to a bank account in Antigua, but there was no money remaining in the account. Topps did not have many assets, so the whereabouts of the missing money was never discovered.

The Crown appealed Baltman J.’s sentence, seeking imprisonment and a fine. In a three sentence decision the unanimous Ontario Court of Appeal dismissed the appeal. Agreeing with Baltman J., the Court of Appeal stated, “[w]hile this is a close call, we think it was open to the trial judge, on the record before her and the submissions of defence counsel, to find that the respondent did not have the ability to pay the fine.” It is unsurprising that the lower courts made their decisions based on the ability to pay. Canadian courts are not statutorily required to consider the ability to pay, though they have considered this factor pursuant to the common law.  Correspondingly, the use of the ability to pay as a factor to be considered in sentencing in regards to fines will likely not be a contentious issue at the SCC.

Two issues will likely be at the forefront of the SCC’s consideration.

1. Does the Crown have to prove current whereabouts of the missing money, despite proof beyond a reasonable doubt that Topps did receive the money?
2. Are the submissions of counsel sufficient to determine a contested factual issue on sentencing instead of requesting or requiring evidence?

The second issue relates to submissions from Topp’s wife regarding their daughter’s medical condition. His wife submitted a letter to Baltman J. that stated that her daughter has a form of cerebral palsy and the consequent strain on the family from the condition was a mitigating factor in Topp’s sentencing. Despite being given an extension, Topp’s counsel failed to submit supporting medical evidence.

Sections 723 and 724 of the Criminal Code may provide some guidance on how these issues should be determined. They are provided below for your convenience.

723. (1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.
(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.
(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.

724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender…
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence[.]

According to s. 724(1), the first issue would likely be answered in the negative. Since it was proved beyond a reasonable doubt at trial that Topps had received the money, it is unnecessary for the Crown to prove the whereabouts of the money. To require otherwise would impose an unduly onerous evidentiary burden on the Crown, especially since evidence adduced at sentencing is treated less strict then that adduced at trial.

Section 724(3)(a) indicates that the second issue would be likely answered in the negative. Since the defence did not provide sufficient medical evidence to prove the medical condition of Topp’s daughter, the court can require the parties to provide evidence at sentencing. Further, if Topps wanted to rely upon his daughter’s condition as a mitigating factor, he would have the burden of proving the existence of the condition.